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Dan Canon: The case for marriage equality in Kentucky

In June of this year, the United States Supreme Court decided the landmark case of U.S. v. Windsor, whichheld that the federal government cannot define “marriage” and “spouse” as applying only to opposite-sex couples.

America is headed for marriage equality, albeit slowly. As of this writing, same-sex couples now enjoy the benefits, rights, and responsibilities that come with marriage in 16 states (and Washington, D.C.). But many states, including Kentucky, refuse to recognize these marriages. Since Windsor, there has been a groundswell of litigation in which same-sex couples are demanding equal recognition of their valid, lawful marriages.

I am privileged and proud to be part of the team of lawyers working on Kentucky’s Marriage Equality case. We expect a final decision from the federal court early next year. Although my firm has only recently become involved, we have learned a lot about the history of state-sanctioned discrimination against people we live with, work with, and love. It is intolerable, and it must be ended.

Our clients are four ordinary, lawfully wedded couples. They go to work, attend school, raise their children, go to church, pay taxes, and in most respects live as any other married couple in Kentucky. Like many married couples in the commonwealth, the plaintiffs were wed outside of their home state. Their marriages were valid under the laws of the jurisdictions in which they were registered. The federal government recognizes plaintiffs’ marriages and extends certain benefits to them as a result. And yet, Kentucky refuses to accept that these couples are married simply because they are same-sex couples.

Our case is essentially about four different provisions of law that allow Kentucky to ignore our clients’ legal, valid marriages. On Monday, we filed a memorandum arguing those laws should be struck down. You can access our briefing here.

Despite what you might think about the political, cultural, or moral issues involved in marriage equality, in my (admittedly biased) view, it is not a difficult decision from a legal standpoint. There are at least a million reasons why we should win. But a million reasons won’t fit into one post, so below I’ve done my best to take off the lawyer hat and explain, in plain English, three good reasons why our clients should win this case.

1. The Laws Violate the Constitution’s Guarantee of Equal Protection

Essentially, Kentucky’s position is that it has the right to ignore the laws and records of a sister state. According to the commonwealth, this right comes from its “public policy” of discriminating against same-sex couples.

Under the U.S. Constitution, any discriminatory law has to have at least a “rational basis” for its existence. In other words, the state has to give a halfway believable reason for its discriminatory practices. And that reason cannot be “that’s the way we’ve always done things,” or “we don’t like the gays.” This is where Kentucky, like all other states to pass such discriminatory laws, falls short.

This issue has been presented to the U.S. Supreme Court several times, and no state has ever been able to articulate a reason for discriminating against same-sex couples, or the LGBT community generally, without resorting to outlandish, desperate speculation.

For example, in Romer v. Evans, the Supreme Court considered numerous possible justifications for Colorado’s law and concluded it “classified homosexuals not to further a proper legislative end but to make them unequal to everyone else.” In Lawrence v. Texas, the Court considered a state law which criminalized specific, private sexual behaviors common among consenting same-sex couples. None of the state’s proposed justifications for the law convinced the Court, which ruled that “[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” And in this year’s Windsor, the Supreme Court considered the constitutionality of a federal law which defined marriage as an institution exclusive to opposite-sex couples. The Court considered each possible justification for the law but disregarded them all, instead finding that the law operated only to “demean those persons who are in a lawful same-sex marriage.” In so doing, “it violate[d] basic due process and equal protection principles” and was therefore unconstitutional.

Kentucky’s laws are no different. They exist only to harm same-sex couples. Period. And there is no credible data showing any harm to society by same-sex couples, same-sex parenting, or same-sex marriages. In fact, all relevant research shows that

marriage provides substantial psychological and physical health benefits due to the moral, economic and social support extended to married couples. Conversely, recent empirical evidence has illustrated the harmful psychological effect of policies restricting marriage rights for same-sex couples. Additionally, children raised by same-sex couples have been shown to be on par with the children of opposite-sex couples in their psychological adjustment, cognitive abilities and social functioning.

Under these circumstances, it is difficult (if not impossible) for a state to show that it has a good reason for restricting the rights of same-sex couples. Of course, that hasn’t stopped them from trying.

2. The Laws Violate Separation of Church and State

The only other reason given for Kentucky’s blatantly discriminatory laws is rooted in a very narrow interpretation of the Bible. On March 11, 2004, the Kentucky Senate passed Senate Bill 245, which proposed the following amendment to the Kentucky Constitution:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

The amendment was sponsored by Sen. Vernie McGaha, who gave the following justification for the bill on the Senate floor:

Mr. President, I’m a firm believer in the Bible. And Genesis 1, it tells us that God created man in his own image, and the image of God created he him; male and female created he them. And I love the passage in Genesis 2 where Adam says ‘this is now a bone of my bones and flesh of my flesh. She shall be called woman because she was taken out of man. Therefore shall a man leave his father and his mother and cleave to his wife and they shall be one flesh.’ The first marriage, Mr. President. And in First Corinthians 7:2, if you notice the pronouns that are used in this scripture, it says, ‘Let every man have his own wife, and let every woman have her own husband.’

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We in the legislature, I think, have no other choice but to protect our communities from the desecration of these traditional values. We must stand strong and against arbitrary court decisions, endless lawsuits, the local officials who would disregard these laws, and we must protect our neighbors and our families and our children…Once this amendment passes, no activist judge, no legislature or county clerk whether in the Commonwealth or outside of it will be able to change this fundamental fact: The sacred institution of marriage joins together a man and a woman for the stability of society and for the greater glory of God.

Sen. Gary Tapp, the bill’s co-sponsor, then declared, “Mr. President, when the citizens of Kentucky accept this amendment, no one, no judge, no mayor, no county clerk will be able to question their beliefs in the traditions of stable marriages and strong families.”

The only other senator to speak in favor of the bill, Ed Worley, stressed that “liberal judges” changed the law so that “children can’t say the Lord’s Prayer in school.” Soon, he concluded, he will be prohibited from saying “the Pledge to the Legiance[sic] in public places because it has the words ‘in God we trust.’” In support of his position, he cited the Bible’s “constant” reference to men and women being married. By way of example, he quoted a passage from Proverbs 21:19, “Better to live in the desert than with a quarrelsome, ill-tempered wife.”

These are the people who make our laws. I don’t know what Bible Sen. Worley is reading, but I’m guessing that passage from Proverbs is not exactly extolling the virtues of marriage. I’m also pretty sure the phrase “in God we trust” is not in the Pledge of Allegiance (although, admittedly, I don’t know much about the “Pledge to the Legiance”).

Regardless, these senators made it clear the reason for the constitutional amendment is to promote their version of Christianity. The problem with this is that nothing in the state constitution can violate the U.S. Constitution. And the First Amendment to the U.S. Constitution prohibits any law from advancing or inhibiting religion. The Kentucky constitution does both. Not only does the amendment impose these Kentucky senators’ definition of marriage on everyone in Kentucky, but also prohibits same-sex couples — many of whom are devout Christians — from practicing their own faith. There are good reasons for the First Amendment’s wall of separation between church and state, most of which are beyond the scope of this post. But one thing most people agree on is that the state should not be allowed to define your religion or tell you how it should be practiced.

3. History Is on Our Side

In 1967, the Supreme Court held that the state of Virginia could not prohibit marriages between “white” and “colored” persons. The original trial judge in that case disagreed. He stated:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

In 2000, Alabama became the last state to remove a law banning marriage between a “Negro and a Caucasian.” The ballot initiative to purge the law succeeded (although 40 percent of Alabaman voters were against it). In 1967, there is no conceivable way such an initiative would have passed. But a few forward thinkers led the way for equality, the courts followed, and — willingly or unwillingly — the rest of the nation had to catch up.

The point is not to equate interracial marriage with same-sex marriage (although the legal parallels are undeniable). The point is: times change. Even 10 years ago, total marriage equality in the U.S. would have been unthinkable. Now, it is not only imaginable within our lifetimes, but perhaps in the next decade. There is an unseen, unstoppable force which ensures “evolving standards of decency in a civilized society” that the Supreme Court has spoken of on so many occasions. I believe that force is at work in our clients’ case, and the dozens of others like it around the country.

I should clarify that even if we win this case, same-sex couples will only have their out-of-state marriages recognized; they will not be allowed to marry in Kentucky. Total marriage equality will require action by the Kentucky legislature, or a broader pronouncement from the U.S. Supreme Court. While none of this change will happen overnight, it helps to remember the old adage: “patience is bitter, its fruit is sweet.”

*This post was written with the help and insight of my law partners, Laura Landenwich and L. Joe Dunman.

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